Wightman v. Wightman

• Decision Date: 09 March 1916
• Parties: WIGHTMAN v. WIGHTMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 398

111 N.E. 881

WIGHTMAN

v.WIGHTMAN.

Supreme Judicial Court of Massachusetts, Bristol.

March 9, 1916.

Appeal from Superior Court, Bristol County.

Bill by Erle Wightman against Henry M. Wightman. From the decree, plaintiff appeals. Further hearing ordered.

F. S. Hall and S. P. Hall, both of Taunton, for appellant.

John W. Cummings and Chas. R. Cummings, both of Fall River, for appellee.

CARROLL, J.

The plaintiff and defendant are brothers. From 1898 till April, 1907, the plaintiff practiced his profession of a dentist in an office in Pawtucket, Rhode Island. The defendant, a younger brother, also a dentist, began working for him in 1898. His wages, beginning at $10 a week, were increased from time to time, and in April, 1907, he was paid $30 a week. Before this last increase ‘he had expressed an intention of leaving his brother and starting on his own account.’ ‘But he still expressed his desire to quit and had given his brother notice that he should leave in 30 days.’ The exact time when this notice of the defendant was given, does not clearly appear. We infer from the report of the master that it was given either in March, 1907, when the defendant's wages were increased, or a short time before June 1, 1907.

In April, 1907, the plaintiff broke down. As the master reports, ‘he was evidently mentally unbalanced and utterly incapacitated to do any business that required intelligent thought.’ He continued in this condition for some time. ‘During the month of May, 1907, the plaintiff occasionally visited his office, but after that and until after the 1st of January, 1910, he gave no attention at all to the business, and during that time he was mentally incapable of giving any attention to it.’ In 1908 he was taken to an insane hospital. In January, 1910, he recovered, and since then his condition has been normal.

May 28, 1907, the plaintiff went before a justice of the peace and executed a deed ‘purporting to convey to his brother, the defendant, all his real estate and personal effects.’ After a few days he delivered the deed to the brother, and at this time gave him written orders to collect his money, deposited in different banks. There was no valuable consideration for this deed.

The defendant continued to practice his profession at the same office, using the materials, tools and furniture therein; ‘for a few months he sent out bills on the billheads then in the office, in the name of the plaintiff;’ ‘for a few months also he entered upon the cash book weekly payments to himself of $30.’ January 1910, the plaintiff being then in normal condition, demanded of the defendant a return of the property which had been put in his hands, and an account of the work done by him in the office. The defendant delivered to him the bank books and on July 20th vacated the room in which the plaintiff had previously carried on his practice as a dentist, and in which the defendant practiced from June 1, 1907, until that date, July 20, 1910. Thereupon this bill was brought.

The two brothers lived with their mother at Attleboro, the plaintiff paying the necessary family expenses as head of the family. Beginning in June, 1907, and during the plaintiff's disability, the defendant paid the expenses of the home out of his own funds, amounting to $4,789.03.

The defendant, from money turned over to him by the plaintiff, paid for the latter's expenses while he was mentally unbalanced. The master found ‘that from and after June 1, 1907, there was no valid contract of service or otherwise, existing between the parties.’ The plaintiff, on account of his condition, was obliged to give up his business, and ‘he made no contract with his brother as to the future conduct of the business.’ ‘He simply gave up and went out, and his brother stayed and went on with the business.’ The master then states the account, showing a balance due the defendant of $105.77. The master also made the alternate finding, ‘If, on the other hand, it must be found on the foregoing facts that the defendant was still in the service of the plaintiff, then the account between them must be settled differently,as follows.’ Then follows the account, showing a balance of $1,996.74 due the plaintiff from the defendant.

The bill alleges that the deed of May 28, 1907, was obtained from the plaintiff ‘by fraud and deception practiced upon the complainant, and by undue influence exerted upon the complainant by said respondent.’ The master made no finding on this question. His report, however, negatives any fraud on the part of the defendant, and as this question was not argued, we take it to have been waived.

The bill, however, states that the plaintiff ‘gave into the charge of the respondent the office and furnishings and tools of his profession, his customers and business, for the respondent to take care of until the complainant's return to health and to the duties of his profession.’ The superior court, upon the master's report, ordered the defendant to reconvey to the plaintiff the real estate described in the deed of May 28th, and to pay the plaintiff the costs of suit, taxed at $70, and directed that the plaintiff pay to the defendant $105.55. The case is before us on the plaintiff's appeal from this decree.

The findings of the master show that in June, 1907, the plaintiff was insane. The contract of employment, therefore, between the parties, ended at this time by reason of the insanity of the employer. Where a relation similar to that of principal and agent exists, on the insanity of the principal the relation ceases. See Drew v. Nunn, L. R. 4 Q. B. D. 661; Story on Agency (8th Ed.) § 481.

The plaintiff argues that, the defendant being in the employ of the plaintiff, upon the latter's insanity, or from June 1, 1907, until January, 1910, he continued to be the agent of the plaintiff, and is chargeable with the profits of the business during that time.

The defendant was employed to assist his brother in his practice as a dentist, on a weekly salary of $30. While he was in the employ of his brother, he was, strictly speaking, his servant or employé. He did not stand toward him in a fiduciary relation in the real sense of the expression. He was not an agent held to the utmost good faith. See Randall v. Peerless Motor Car Co., 212 Mass. 352 at page 375,99 N. E. 221.

[5] Leaving out of consideration the question of responsibility...